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Shue v. State

Supreme Court of Nevada

December 14, 2017

JOSHUA CALEB SHUE, Appellant,
v.
THE STATE OF NEVADA, Respondent.

         Appeal from a judgment of conviction, pursuant jury verdict, of child abuse and neglect, 29 counts of use of a child in the production of pornography, 10 counts of possession of visual presentation depicting the sexual conduct of a child, and open or gross lewdness. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.

          Howard Brooks, Public Defender, and William M. Waters, Deputy Public Defender, Clark County, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Jonathan VanBoskerck, Chief Deputy District Attorney, and Ryan J. MacDonald, Deputy District Attorney, Clark County, for Respondent.

         BEFORE THE COURT EN BANC.

          OPINION

          PARRAGUIRRE, J.

         NRS 200.710(2) criminalizes the knowing use of "a minor to be the subject of a sexual portrayal in a performance." Likewise, NRS 200.730 criminalizes the knowing and willful possession of "any film, photograph or other visual presentation depicting a person under the age of 16 years as the subject of a sexual portrayal." For the purposes of these statutes, NRS 200.700(4) defines "[slexual portrayal" as "the depiction of a person in a manner which appeals to the prurient interest in sex and which does not have serious literary, artistic, political or scientific value."

         In this appeal, we are asked to consider the appropriate units of prosecution under NRS 200.710(2) and NRS 200.730. Specifically, we first consider whether the State improperly charged appellant Joshua Shue with two counts of violating NRS 200.710(2) for each video file that depicts two minors. We conclude that the term "a minor" under NRS 200.710(2) unambiguously allows for a separate conviction for each minor used in each performance, and thus, Shue's 29 convictions under NRS 200.710 are not impermissibly redundant.[1] We also consider whether Shue was improperly convicted under NRS 200.730 on a per-image basis. We conclude that under Castaneda v. State, 132 Nev., Adv. Op. 44, 373 P.3d 108 (2016), the State improperly relied on a per-image unit of prosecution by failing to present evidence showing the mechanics of how Shue recorded and saved the various video files and digital images of children on his laptop. Thus, Shue is entitled to have 9 of his 10 convictions under NRS 200.730 vacated.[2]

         Next, we consider whether Nevada's statutes barring the "sexual portrayal" of minors violate the First Amendment of the United States Constitution as being unconstitutionally overbroad or as a content-based restriction that fails strict scrutiny, or violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution as being impermissibly vague. We conclude that the statutes do not implicate protected speech and are not unconstitutionally vague on their face or as applied to Shue. Thus, we reject these claims.

         Finally, we consider whether (1) sufficient evidence supports Shue's conviction of open or gross lewdness under NRS 201.210, and (2) any of Shue's asserted trial errors warrant reversal. We conclude that (1) there is insufficient evidence to support Shue's conviction under NRS 201.210, and (2) Shue's asserted trial errors do not warrant reversal. As such, we affirm Shue's 29 convictions under NRS 200.710(2), 1 conviction under NRS 200.730, and the single child abuse conviction under NRS 200.508. We further vacate Shue's remaining 9 convictions under NRS 200.730, and we reverse his single conviction under NRS 201.210.

         FACTS AND PROCEDURAL HISTORY

         In the summer of 2010, Shue began periodically staying at his then-girlfriend's residence. At that time, Shue's then-girlfriend lived with her daughter, H.I., and her two sons, K.I. and F.I. During Shue's visits, H.I. was between the ages of 15 and 17, K.I. was between the ages of 11 and 13, and F.I. was between the ages of 10 and 12. In August 2012, Shue approached H.I. from behind and used a small digital camera to take a picture underneath her skirt. Shue showed H.I. the picture, and she asked him to delete it. Later that night, Shue kissed H.I. on the mouth without her consent. H.I. reported both incidents to the police the next day.

         Thereafter, the police interviewed Shue and mentioned the possibility of searching his computer, and he indicated that such a search would reveal some things that are not "on the up-and-up." The police then obtained a warrant to search Shue's residence, and they seized Shue's digital camera and laptop. Shue's digital camera revealed a deleted up-skirt photo of H.L, and his laptop contained photographic images of underage males performing sexual activities or with their genitalia and buttocks exposed. Shue's laptop also contained several videos of H.L and K.I. in the bathroom. Each video surreptitiously captures H.L, K.L, or both, fully nude performing bathroom activities. Shue appears in some of the videos, where he is either setting up or manipulating the camera.

         A grand jury returned an indictment against Shue, charging him as follows: 1 count of child abuse and neglect under NRS 200.508 for taking an up-skirt photo of H.L, inappropriately kissing her, and surreptitiously recording her while she engaged in bathroom activities (count 1); 29 counts of use of a child in the production of pornography under NRS 200.710(2) for surreptitiously recording H.L and K.I. while they were engaged in bathroom activities (counts 3-4, 6-7, 9-10, 12-13, 15-16, 18-19, 21-22, 24-25, and 27-38), and taking an up-skirt photo of H.L (count 2); 10 counts of possession of a visual representation of sexual conduct or sexual portrayal of a child under 200.730 for possession of video files of K.I. performing bathroom activities (counts 5, 8, 11, 14, 17, 20, 23, and 26), a digital image of one young male fellating another young male (count 40), and images of a boy with his genitalia and buttocks exposed (count 41); and 1 count of open or gross lewdness under NRS 201.210 for inappropriately kissing H.I. (count 39).

         The trial jury found Shue guilty on all counts, and Shue received a life sentence with parole eligibility beginning after 10 years. The district court entered a judgment of conviction, from which Shue now appeals.

         DISCUSSION

         On appeal, Shue argues that (1) 8 of his 29 convictions under NRS 200.710(2) are impermissibly redundant, (2) Castaneda v. State requires this court to reverse 9 of his 10 convictions under NRS 200.730, (3) Nevada's statutes barring the sexual portrayals of minors are unconstitutional, (4) the State presented insufficient evidence to support his conviction of open or gross lewdness, and (5) his asserted trial errors warrant reversal. We address these arguments in turn. Shue's convictions under NRS 200.710(2) are not impermissibly redundant

         At issue here are those counts wherein a single video file resulted in two charges against Shue under NRS 200.710(2) because the videos captured both H.I. and K.I.[3] Shue argues that 8 of his 29 convictions under NRS 200.710(2) are impermissibly redundant because he can only be penalized for each performance proved.[4] The State counters that Shue can be charged for each minor used in each performance. We agree with the State; therefore, we affirm Shue's 29 convictions under NRS 200.710(2).

         As an initial matter, we construe Shue's argument as a unit of prosecution determination. See Castaneda, 132 Nev., Adv. Op. 44, 373 P.3d 108, 110 (2016). "[Determining the appropriate unit of prosecution presents an issue of statutory interpretation and substantive law." Id. (internal quotation marks omitted). "[W]e review questions of statutory interpretation de novo." State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). "[W]hen a statute is clear on its face, " we must afford the statute its plain meaning. Id. (internal quotation marks omitted).

         NRS 200.710(2) makes it a category A felony when a person "knowingly uses, encourages, entices, coerces or permits a minor to be the subject of a sexual portrayal in a performance." (Emphasis added.) In Castaneda, we observed that courts interpreting criminal statutes for the proper unit of prosecution have consistently found them ambiguous when "the object of the offense has been prefaced by the word 'any.'"[5] 132 Nev., Adv. Op. 44, 373 P.3d at 111 (internal quotation marks omitted). Those courts reasoned that the word "any" can be interpreted "to fully encompass (i.e., not necessarily exclude any part of) plural activity, and thus fails to unambiguously define the unit of prosecution in singular terms." Id. (internal quotation marks omitted). In contrast to the word "any, " the term "a minor" under NRS 200.710(2) plainly denotes the object of the offense in singular terms and necessarily precludes any ...


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